Summary:
54 year-old registered nurse injured in automobile accident sought evaluation
at the Mayo Clinic in Minnesota and ruling that the insurer was liable
for her leg complaints as well as her neck, arm, and headache pain.

Held:
Further evaluation is medically reasonable and necessary where three
different physicians recommended the evaluation, several additional
tests have been recommended by various physicians, physicians treating
claimant have expressed uncertainty as to the nature of her condition,
and treatment to date has been largely ineffective. Also relevant is
the Court's impression that claimant will never return to work unless
effective treatment is found and that evaluation at the Mayo Clinic,
even if it provides no better diagnosis and treatment, will provide
closure to the medical investigation. If the only reason for the referral
to the Mayo Clinic were claimant's desire for the evaluation, the Court
would not order the evaluation. The insurer is not responsible for treatment
relating to claimant's legs and feet where medical records do not support
her assertion that pain in those areas emerged at the time of the accident
and remained constant. Rather, the records demonstrate claimant's symptoms
in those areas have varied and have not been explained by any physician.

Topics:

Benefits: Medical Benefits:
Liability. Insurer is not responsible for treatment relating to
claimant's legs and feet where medical records do not support her
assertion that pain in those areas emerged at the time of the compensable
automobile accident and remained constant. Rather, the records demonstrate
claimant's symptoms in those areas have varied and have not been explained
by any physician.

Benefits: Medical Benefits:
Out-of-state Treatment. Out-of-state evaluation for claimant's
chronic neck and arm pain, and headaches, is medically reasonable
and necessary where three different physicians recommended the evaluation,
several additional tests have been recommended by various physicians,
physicians treating claimant have expressed uncertainty as to the
nature of her condition, and treatment to date has been largely ineffective.
Also relevant is the Court's impression that claimant will never return
to work unless effective treatment is found and that evaluation at
the Mayo Clinic, even if it provides no better diagnosis and treatment,
will provide closure to the medical investigation. If the only reason
for the referral to the Mayo Clinic were claimant's desire for the
evaluation, the Court would not order the evaluation.

The trial in this
matter was held in Billings, Montana, on August 20, 1996. Petitioner,
Nancy Lee Pasha (claimant), was present and represented by Mr. Marvin
L. Howe. Respondent, National Union Fire of Pittsburgh (National Union),
was represented by Mr. Peter J. Stokstad.

Exhibits: Exhibits
1 through 3 were admitted at trial by stipulation.

Witnesses and Depositions:
Claimant was sworn and testified. In addition the parties submitted depositions
of Dr. Gary D. Cooney and Dr. Dale M. Peterson for the Court's consideration.

Issues Presented: The
following issues are presented:

(1) Is National Union liable
for an evaluation of claimant at the Mayo Clinic in Rochester, Minnesota?

(2) Is National Union liable
for claimant's leg complaints?

(3) Is claimant is entitled
to attorney fees, costs, and a penalty?

* * * * *

Having considered the Pre-trial
Order, the testimony presented at trial, the demeanor and credibility
of the witness, the depositions, the exhibits, and the arguments of the
parties, the Court makes the following:

FINDINGS OF FACT

1. Claimant is 54 years old
and resides in Hathaway, Montana. She is a registered nurse and received
part of her nurses training at the Mayo Clinic in Rochester, Minnesota.

2. In January 1992, and for
the 19 previous years, the claimant was employed by the American Red Cross
(Red Cross).

3. On January 9, 1992, claimant
was traveling in a Red Cross van in Miles City, Montana, when the van
made a sudden stop to avoid a collision with another vehicle. Claimant
was wearing a lap belt but not a shoulder belt. She was thrown forward
in the vehicle but remained belted in her seat.

4. Immediately following the
accident claimant experienced pain in her right cervical area and right
arm.

5. At the time of the accident,
Red Cross was insured by National Union. National Union accepted liability
and has paid medical and disability benefits to claimant.

6. Dr. Gary D. Cooney, claimant's
treating physician, found her to be at maximum medical improvement in
February 1996. (Ex. 1 at A-60.) However, National Union acknowledges that
claimant is presently permanently totally disabled as a result of her
industrial injury.

Claimant's Request to Attend
the Mayo Clinic

7. Since the accident the claimant
has experienced severe headaches and pain in her neck and both arms. She
has also complained of pain in both legs and feet. She has seen numerous
doctors concerning her complaints.

2. Right upper extremity
paresthesias with sensory deficits in the C6 dermatome. A disc herniation
at the C5-6 level merits consideration. She has no evidence of motor
root weakness or reflex abnormalities however.

(Id. at A-12.) An
x-ray taken at that time disclosed "[m]inimal disc disease at C5-6." Otherwise,
the x-ray was normal. (Id. at A-13.) Dr. Cooney prescribed Valium
and outpatient cervical traction four times a day. (Id. at A-12.)

10. Claimant continued to experience
neck and arm pain, so Dr. Cooney admitted her to St. Patrick Hospital
in Missoula on January 20, 1992, for treatment with cervical traction
and injectable Toradol.(1) (Cooney Dep.
at 9; Ex. 1 at A-19.) At that time, claimant's "predominant complaints
were of pain in her neck and shoulder girdle and right upper extremity."
(Cooney Dep. at 9.) A cervical MRI on January 21, 1992, disclosed "[m]inimal
narrowing of the C5-6 disc with no other specific abnormality." (Ex. 1
at A-78.) Dr. Cooney discharged claimant on January 26, 1992. (Id.
at A-14 to 15.)

11. During her January 1992
hospitalization claimant "developed some symptoms of pain in knees and
ankles." (Id. at A-15.) The significance of those symptoms will
be considered later in this decision.

12. Over the next year the
claimant continued to experience chronic headaches, neck pain, and bilateral
arm pain and numbness. (Id. at A-38.) Between January 1992 and
February 1993, claimant was treated with various drugs. She also underwent
decompressive right ulnar nerve surgery on May 19, 1992. (Id.
at A-28, A-70.) The surgery alleviated some of her symptoms but overall
her complaints continued. (Id. at A-28 to 38.)

13. Between January 1992 and
February 1993, Dr. Cooney arrived at five primary impressions of claimant's
medical condition. Four are reflected in his April 27, 1992 office note,
as follows:

(Id. at A-27.) In
his November 2, 1992 office note, he added the fifth:

5. Probable migraine headaches,
post traumatic secondary to #1.

(Id. at A-30.)

14. Dr. Lawrence J. Toder,
an orthopedic surgeon, recommended and performed the ulnar surgery on
claimant. (Id. at A-68 to 69.) He followed her recovery from
the surgery. His office notes indicate that claimant had continued complaints
in her hands, arms and neck. (Id. at A-71 to 74.) His office
notes demonstrate his uncertainty concerning the cause of her complaints.
On May 28, 1992, he wrote, "I think the pt [patient] may be exhibiting
early reflex dystrophy." (Id. at A-71.) On October 8, 1992, he
recorded that she had multiple complaints in her right arm and neck and
was "essentially dysfunctional." (Id. at A-73.) At that time
he noted that she was returning to see Dr. Cooney and "suggest[ed] that
she continue to pursue problems relating to her brachial plexus and neck
which I think is a source of her problems." (Id.)

15. After examining claimant
on November 11, 1992, Dr. Toder noted that she was "essentially no better."
(Id.) He repeated his belief that claimant had some problem relating
to her brachial plexus and neck. (Id.) His office note for this
visit is the first mention of the Mayo Clinic.

The patient has either a
brachial plexus or cervical spine problem. At the present time I will
try to communicate with Dr. Gary Cooney to see if he has any suggestions
for therapy. She has the opportunity to go back to the Mayo Clinic in
January and I suggest that if she if [sic] not feeling any better, which
I suspect will be the case, that we arrange for her to have a neurologic
and neurosurgical consult back there.

(Id. at A-73.)

16. On December 23, 1992, after
discussing the case with Dr. Cooney, Dr. Toder indicated that he and Dr.
Cooney had been unable to make any definitive diagnosis of claimant's
condition or provide an effective treatment plan. He urged that she be
examined by a "super expert" at the Mayo Clinic.

I had a discussion with
Mary at Crawford Rehab about Mrs. Pasha's case. I feel that Mrs. Pasha
at this present time continues to have symptomatology and does not have
a diagnosis nor treatment plan provided by physicians she has seen including
myself. I have discussed this case with Dr. Cooney and he and I both
agree that a super expert opinion would be of great benefit in her case.
Will try to make arrangements for her to get a neurological consult
at Mayo Clinic in Rochester, Minnesota to further resolve her diagnostic
and therapeutic problems.

(Id. at A-74.)

17. Dr. Toder's final note,
dated February 8, 1993, states: "We are still expecting her to go to the
Mayo Clinic for a full evaluation of her status." (Id.)

18. Dr. Cooney's first mention
of the Mayo Clinic was in a letter he wrote on February 15, 1993, to an
attorney representing claimant.

At the time of her last
visit (2/8/93), she [claimant] broached the possibility that it might
be worthwhile for her to be evaluated at the Mayo Clinic in regard to
her persistent complaints of neck pain, right upper extremity pain and
tenderness, and headaches. She indicated that she was most interested
in being evaluated at the Mayo Clinic. I advised her that I certainly
had no objection to such a referral.

(Id. at A-37.)

19. On March 25, 1993, Dr.
Cooney wrote to Sandy Mayernik, who was adjusting the case for the insurer.

Mrs. Pasha is becoming quite
frustrated at her lack of symptomatic improvement for her complaints
of headaches, neck pain, and bilateral upper extremity pain and numbness
which she relates to the injury she sustained on 1/9/92. Consequently,
we have discussed referring her to a university medical center or a
large multidisciplinary [sic] clinic to obtain a second opinion regarding
the etiology and possible treatment of her multiple symptoms. She has
expressed a desire to go to the Mayo Clinic, which certainly would appear
to be an excellent choice for the sort of evaluation she seeks. Whether
it would be more effective obtaining a second neurological or orthopedic
opinion in Montana is uncertain. In view of the protracted duration
of her symptoms, I personally would favor her getting a second opinion
to determine whether anything else can be done to alleviate the symptoms
which have been plaguing her for over one year. It would seem appropriate
that that be done at a university or large multidisciplinary [sic] clinic
such as the Mayo Clinic.

(Id. at A-41.)

20. In an office note of April
12, 1993, Dr. Cooney reiterated his recommendation that claimant be examined
at the Mayo Clinic.

At this point, I think it
would be most appropriate for the patient to be evaluated by a neurosurgeon
at the Mayo Clinic who could then refer her to other specialists (such
as orthopedic surgeon, neurologist, podiatrist or psychiatrist), as
he sees fit. I suspect that this approach would probably be substantially
less expensive than a multi-disciplinary panel evaluation at this point.

(Id. at A-43 to 44.)

21. In part, Dr. Cooney has
recommended that claimant be examined at the Mayo Clinic because claimant
wishes to have such examination. (Id. at A-37; Cooney Dep. at
19, 36-37.) If that were the sole reason for the doctor's recommendation
it would be insufficient. A complete reading of his medical records and
deposition, however, convinces me that his recommendation is also for
medical reasons. As he noted in his letter to Ms. Mayernik, claimant was
not improving despite his prescribed treatment. During his August 12,
1996 deposition, he was specifically asked whether he still recommended
the Mayo Clinic and, if so, why.

Q. Doctor, is it still your
recommendation that Nancy be evaluated at the Mayo Clinic?

A. Yes, it is.

Q. Why is that?

A. Because I don't think
that she is going to be satisfied that she has gotten the medical evaluation
that she needs until she does go to the Mayo Clinic.

Q. Doctor, in your opinion,
is this evaluation medically necessary for Nancy's care?

A. Yes, I think that it
is.

Q. And do you base that
upon a reasonable degree of medical certainty?

A. Yes, I do.

(Cooney Dep. at 21; emphasis
added.) Thus, while claimant's desire to be examined at the Mayo Clinic
has been one factor in Dr. Cooney's recommendation, he also made the recommendation
because, in his medical opinion, it is medically necessary.

22. Dr. Catherine C. Capps,
of the Northern Rockies Orthopaedic Specialists in Missoula, examined
claimant on April 27, 1993. (Ex. 1 at A-102 to 107.) She was unable to
find a specific cause for claimant's complaints and identified a number
of possible conditions she felt should be ruled out, including connective
tissue disease, such as lupus, myelopathy (disease of the spinal cord),
an intercranial lesion, and a thyroid tumor. (Id. at A-105 to106.)
She recommended an MRI scan of the brain, a cervical myelogram, and further
workups for lupus and a thyroid tumor. (Id. at A-106.) Dr. Capps
noted that if the recommended testing and evaluation were negative then
"I would not be able to explain her current symptomatology . . . ." (Id.)
She did not express any opinion concerning referral of claimant to the
Mayo Clinic.

23. Lupus and thyroid testing
and an MRI of the brain were then done but the results were negative for
disease or pathology. (Id. at A-47, A-82 to 84.) Cervical myelography
has apparently never been done despite the further recommendation of the
procedure by Dr. Fred G. McMurry, a neurosurgeon who examined claimant
in 1995. (Id. at A-121.) According to a December 13, 1995 letter
by Dr. McMurry, "Myelographic studies were never completed, I believe,
because the patient was not anxious to have that study." (Id.,
italics added.)

24. Dr. James E. Gouaux, an
internal medicine specialist in Missoula, evaluated claimant for lupus
and thyroid problems on May 17, 1993. (Id. at A-82, A-84.) As
stated in the previous paragraph, his evaluations were negative. (Id.
at A-84.) He was unable to diagnose the cause of claimant's complaints
and he agreed with Drs. Toder and Cooney in recommending she be referred
to the Mayo Clinic. In a May 17, 1993 letter, he wrote:

Because of difficulty in
diagnosing and treating these symptoms, I recommended to Mrs. Pasha
that she get medical consultation outside of Missoula, such as the Mayo
Clinic, University of Washington, or other tertiary care center.

(Id. at A-82.) In
an office note of the same date, he wrote:

Because of the possibility
of undiagnosed spine abnormality causing neurological symptoms, I advised
that she see a neurological consultant tertiary medical center such
as University of Washington, Mayo Clinic.

(Id. at A-84.)

25. Despite the recommendations
of the Drs. Cooney, Toder and Gouaux, the insurer refused to authorize
evaluation of claimant at the Mayo Clinic.

26. During the ensuing three
years, both claimant and the insurer continued to seek further medical
answers from Montana physicians. Claimant was reexamined by Dr. Cooney
on several additional occasions in 1993, on July 27, 1995, and on February
16, 1996. (Id. at A-40 to 65.) She was evaluated in 1995 by Dr.
McMurry (id. at A-110 to 121) and his associate, Dr. John I.
Mosely, who is also a neurosurgeon (id. at A-122 to 126). In
April 1996 she was evaluated by Dr. Dale M. Peterson, a neurologist. (Ex.
3 at 2-7.) Despite those examinations, and numerous additional tests,
claimant's condition has still not finally and definitively been diagnosed,
nor has she benefited from further treatment.

27. Following his last, February
16, 1996 examination of claimant, Dr. Cooney's impression of claimant's
condition continued to be multifactorial. (Ex. 1 at A-63 to 64.) He continued
to diagnose claimant as suffering "cervical strain/sprain." He again noted
her right upper extremity and neck pain but added, "This most likely represents
a post traumatic fibrositis." Reference to right lateral epicondylitis
was deleted. Reference to "[r]ight upper extremity sensory and motor deficits,
of uncertain etiology" was added. (Id.)

28. Dr. McMurry initially thought
that claimant might be suffering from thoracic outlet syndrome, but Dr.
Mosely, to whom Dr. McMurry referred claimant for further evaluation of
that possibility, could not establish that diagnosis. (Id. at
A-111, 121.) EMG testing and a cervical CT scan done at Dr. McMurry's
direction failed to identify any operable cervical spine abnormality.
(Id. at A-118, A-120.) In his final letter to the insurer's claims
adjuster, Dr. McMurry noted that Dr. Mosely "has continued concerns regarding
[the] possibility of radiculopathy"; that recommended myelographic studies
had not been done; that claimant has "reached maximum medical healing
barring a discovery of an obviously treatable diagnosis which has not
been available to date"; and that his "[f]inal diagnostic considerations
are those of an unresolved cervical radiculopathy." (Id. at A-121.)

29. Dr. Peterson, who at the
request of the insurer performed the latest examination of claimant on
April 29, 1996, indicated that claimant's case involved a "very difficult
presentation" and recommended further MRI of her neck, a full EMG examination,
and a neuropsychological evaluation.

In summary, this is a very
difficult presentation. It sounds as if she had a to and fro type injury
of her neck and initially had some muscular spasms in the neck and shoulders,
worse on the right. The initial feeling was that she might have a C6
radiculopathy at least on the basis of sensory changes and on the basis
on a somewhat incomplete EMG (only motor studies) she was felt to have
a little slowing at the right elbow, but there is not anything about
her history that would have suggested ulnar nerve damage at the elbow,
as near as I can tell. Not surprisingly, the transposition of the ulnar
nerve did little to improve the symptomatology.

Currently, her findings
are kind of a mixture of pain behavior, a limitation of motion of shoulder
and neck, and really no hard organic signs. By this time I would have
expected when people are raising the question of a plexus lesion or
a progressive neurologic impairment of some type, to have found some
pretty clear cut findings.

I think that it is reasonable
after this number of years to re-MRI her neck and have a full EMG examination
of her right arm. If these studies really reveal little of note, as
I suspect they will, then I think that her therapy needs to be done
with a physical therapist who is willing to take the ?? pains to work
with her and a gentle long range program trying to learn range of motion
of the neck and shoulder since I think that is mostly what is involved
here. In most of the patient's [sic] I see who are this far out, I usually
recommend a neuropsychological examination as well since there is usually
a lot of emotional development and depression that comes along as part
of this kind of situation.

(Ex. 3 at 6-7; ?? in original.)
Dr. Peterson did not offer an opinion concerning evaluation of claimant
at the Mayo Clinic.

30. The only medical opinion
offered in opposition to referring claimant to the Mayo Clinic was in
the form of a September 16, 1993 letter from Dr. Raymond G. Auger, who
is apparently a physician at the Mayo Clinic. His letter was in response
to a request by the insurer that he determine whether it would be beneficial
for claimant to be examined at the Mayo Clinic. Dr. Auger's response,
in its entirety, was as follows:

I have reviewed Ms. Nancy
Pasha's records, and I do not believe that we would have any more to
offer her here than the local physicians can accomplish. Therefore,
I would not encourage further evaluation at our institution.

(Id. at A-108.) Dr.
Auger's connection to the Mayo Clinic and his medical credentials and
specialty have not been furnished to the Court. He provided no medical
rationale for his response He did not testify. Under these circumstances
I give no weight whatsoever to his opinion.

31. The medical records and
the claimant's testimony indicate that there has been little change in
claimant's condition since her injury in 1992. She continues to suffer
from pain and numbness which totally disables her from returning to work.
The medical records reflect a poor prognosis for any future return to
work.

32. Claimant has met her burden
of proof with regard to her need for further evaluation at a tertiary
medical center or teaching hospital. While there is no evidence that the
Mayo Clinic is the only place which can conduct the further evaluation,
the insurer's opposition to her request is to the further examination,
not to the Mayo Clinic itself.

33. I am persuaded that further
evaluation is reasonable and necessary for several reasons:

a. Three different physicians
recommend the evaluation. The only physician who opposes the referral
has provided a two sentence letter

which fails to set forth
any reasons for his conclusion. Further, the Court has been provided
no further information concerning the physician or even why the insurer
solicited his opinion in particular.

b. Several additional tests
have been recommended by various physicians, including physicians performing
independent medical examinations at the insurer's request.

c. The physicians who have
seen claimant have expressed uncertainty as to the nature of claimant's
condition and treatment to date has been largely ineffective.

d. Unless more effective
treatment is found it is unlikely the claimant will ever return to work.
Claimant is seven to ten years from normal retirement age, thus she
has several potential working years ahead of her if she can be rehabilitated.

e. The chronic nature of
claimant's condition and her disability are factors which should be
considered in determining whether one final comprehensive evaluation
should be undertaken.

f. Even if the Mayo Clinic
doctors provide no better diagnoses and treatment than Montana physicians,
their opinions may provide closure to both the insurer and claimant
by requiring them to acknowledge that there are no better answers or
treatment alternatives.

Relationship of Claimant's
Leg Symptoms to Her Injury

34. Claimant contends she suffers
from pain and numbness in her lower extremities due to the January 9,
1992 accident. The insurer denies any relationship between her complaints
and the accident.

35. At trial the claimant testified
that ever since the accident she has had pain in her legs and that her
leg pain has essentially remained the same ever since the accident. The
medical records, however, do not support her testimony. Rather, they show
that claimant's symptoms have varied. The medical records, as well as
the testimony of Drs. Cooney and Peterson, also reflect a total inability
of the physicians examining and treating claimant to diagnose or explain
her condition.

36. The first record of lower
extremity complaints is found in Dr. Six's records of his examination
of January 10, 1992. (Ex. 1 at A-5.) In answering a questionnaire as to
why she was seeking chiropractic care, claimant provided a detailed list
of her complaints, especially as relating to her neck and arms. She also
included, "Feet and ankle pain when reclining." (Id. at A-8.5.)
She was provided human diagrams and asked to indicate the areas of her
symptoms. She drew arrows to the right side of the neck and both ankles.
(Id.) She did not indicate any pain in her legs.

37. Dr. Cooney's office note
of his first examination of claimant on January 13, 1992, contains no
mention of any lower extremity complaints. (Id. at A-12 to 13.)

38. In the history taken of
claimant on January 20, 1992 by Dr. Cooney, there is similarly no mention
of any lower extremity complaints on the part of claimant. (Id.
at A-18 to 19.) Dr. Cooney's physical examination, however, extended to
claimant's lower extremities and he noted:

DTR's [deep tendon reflexes]
are slightly hyperactive in both upper and lower extremities
(including biceps, triceps and brachial radialis.) No ankle
clonus, Babinski signs or Hoffman signs are noted. . . . Vibratory sensation
is diminished in the right leg compared to the left but the Romberg
sign is absent.

(Id. at A-19, emphasis
added.) The significance, if any, of the physical findings was not explained
in the medical record or Dr. Cooney's deposition.

39. Dr. Cooney first reported
lower extremity symptoms on January 25, 1992, after claimant had taken
Lodine.(2) (Id. at A-14 to 15.)
Claimant reported pain in her knees and ankles. (Id. at A-15.)
Dr. Cooney discontinued the Lodine but testified that it was not likely
the cause of the pain. (Cooney Dep. at 25-26.) In the discharge summary
he wrote, "Right knee and ankle pain, of uncertain etiology." (Ex. 1 at
A-15.) In his deposition he testified that he thought at the time that
she was suffering from "some kind of polyarthritis of uncertain etiology."
(Cooney Dep. at 10.) He explained that polyarthritis is only a "descriptive
diagnosis" indicating that she had joint pain. (Id. at 26.) In
any event, claimant was still complaining of "pain in the knees and ankles,
aggravated by activity" when she was discharged on January 26, 1992. (Ex.
1 at A-15.)

40. Dr. Cooney's office note
of February 4, 1992, does not mention any ankle, knee or leg complaints
by claimant. (Id. at A-22.)

41. On March 3, 1992, claimant
complained of "experiencing some weakness in the hip flexors of her left
lower extremity" but did not mention any ankle, knee or other leg symptoms.
(Id. at A-23.)

42. Dr. Cooney's office notes
for his examinations of claimant on April 27, 1992, May 28, 1992, and
June 25, 1992, do not record any lower extremity complaints by claimant.

43. On July 23, 1992, Dr. Cooney
noted that claimant dropped by his office complaining of "numbness of
the LLE [left lower extremity] which appears to radiate down the dorsal
aspect of the thigh and calf into the lateral aspect of the foot for the
past three weeks." His office note further reflects that claimant reported,
"This is not a particularly painful symptom, but does produce some tingling
sort of sensations." (Cooney Dep. Ex. 1.)

44. On September 2, 1992, Dr.
Cooney recorded that claimant continued to experience problems with "occasional
bilateral lower extremity numbness" which "seem[s] to occur when she is
lying down." (Ex. 1 at A-30.)

45. On October 8, 1992, Dr.
Cooney recorded that claimant continued to complain of having problems
sleeping and that "lying down seems to aggravate the pain in her neck,
shoulder girdle, upper extremities, lower back, and lower extremities."
(Id. at A-32, emphasis added.)

46. Dr. Cooney's notes for
office visits on November 11, 1992, January 6, 1993, February 8, 1993,
March 8, 1993, April 12, 1993, and May 10, 1993, do not reflect any lower
extremity complaints by claimant. (Id. at A-35 to 36, A-38 to
40, A-43 to 45.)

47. Dr. Capps' report of her
examination of claimant on April 27, 1993, states that claimant's "current"
complaints included her legs.

She also states her arms
and legs get numb according to her neck and head position.
The patient also states she has bilateral leg pain that begins in the
groins and can radiate down the anterior thighs and calves to the instep.
She is occasionally weak. She has numbness in the same pattern. This
is described as a dull ache of 3 to 4 on a scale of 1 to 10.

(Id. at A-103, emphasis
added.)

48. Dr. Gouaux's note of his
examination of claimant on May 17, 1993, similarly reflects claimant's
leg complaints. He recorded that since claimant's accident she has continued
to have pain in her neck and arms, "plus a feeling of numbness of the
medial thighs, lower legs, and feet." (Id.) His neurological
exam of the lower extremities adduced "diminished vibration perception
in the distal feet and almost absent in the big toes, decreased proprioception
of the big toes, decreased light touch perception in the medial aspect
of both feet." (Id. at A-84.) However, he noted that claimant's
lower extremity strength seemed "okay." (Id.)

49. On June 14, 1993, Dr. Cooney
recorded that claimant "has recently been experiencing numbness in both
lower extremities from the groin distally from time to time." (Id.
at A-46.) He also reported that claimant "has a stocking hypalgesia of
the lower extremities affecting both lower extremities symmetrically,
beginning in the lateral thigh region and extending into the calf and
foot." (Id.)

50. On July 19, 1993, Dr. Cooney
recorded that claimant continued to complain of "numbness and pain in
both lower extremities which radiate from the groin distally." (Id.
at A-48.)

51. On September 9, 1993, Dr.
Cooney recorded that claimant continued to "experience intermittent numbness
of the right arm and both lower extremities, particularly at night." (Id.
at A-52.)

52. On November 8, 1993, Dr.
Cooney reported that claimant was complaining "of pain in the medial aspect
of both thighs and calves." (Id. at A-53.) In his impressions
he noted "[b]ilateral lower extremity pain and numbness, of uncertain
etiology." (Id.)

In reviewing my records,
it appears that they [claimant's lower extremity problems] developed
while she was hospitalized in January of 1992, initially affecting the
right knee and ankle, subsequently involving both knees and ankles.
This seemed to develop after she was started on Lodine 200 mgs tid for
pain relief, but did not abate with discontinuation of the Lodine, although
it appears that the pain did abate by the time she was seen for a recheck
visit on 2-4-92. She again noted that she was experiencing numbness
of the left lower extremity radiating down the dorsal aspect of the
thigh and calf and into the lateral aspect of the foot of three weeks
duration, when she dropped by my office on 7-23-92. She denied back
pain at that time. In my note, I note that she had this same
symptom during her hospitalization. She again was noted to
have complaints of bilateral lower extremity numbness on lying down
on 9-2-92. She complained of some achy discomfort in her lower back,
but denied any typical sciatic symptoms when I saw her on 6-14-93, and
again on 7-19-93. In view of this, it appears to me that the
patient's low back and lower extremity symptoms are more likely than
not related to the injuries she sustained on 1-9-92. There is little
question that these symptoms have been substantially overshadowed by
her head, neck and upper extremity symptoms, however.

(Id. at A-50, emphasis
added.)

55. As the quoted material
in the previous paragraph indicates, Dr. Cooney reported that claimant
had some low-back discomfort following the 1992 accident. (Cooney Dep.
at 15.) In reviewing Dr. Cooney's medical records, it appears he first
recorded low-back symptoms on June 14, 1993, when he wrote, "She has had
some achy discomfort in the lower back, but denies typical sciatica."
(Ex. 1 at A-46.) Dr. Cooney was unable to establish any link between claimant's
back discomfort and her leg symptoms. (Id.)

56. In his deposition, Dr.
Cooney confirmed the opinion he expressed in his July 22, 1993 letter
to claimant's attorney. (Cooney Dep. 12-13.) He testified that claimant's
lower extremity problems were directly related to the accident. (Id.
at 13.) However, he did not offer any medical explanation for claimant's
symptoms "only that there didn't seem to be any other explanation for
her development of these symptoms, the cause of which I did not understand
then, and which I do not understand now, only that there seemed to be
a temporal relationship between the onset of those symptoms and her involvement
in the accident . . . ." (Id. at 26-27.)

57. Dr. Cooney's July 22, 1993
opinion letter briefly outlined claimant's history of leg pain. He noted
that she developed pain in her knees and ankles during her January hospitalization
and that the pain had abated by February 4, 1992. (Ex. 1 at A-50.) He
wrote that the next time claimant mentioned any leg symptoms was "when
she dropped by my office on 7-23-92." (Id.) His note of that
date stated that "she had this same symptom during her hospitalization."
(Id.) However, his office note for that date recorded that claimant
was complaining of numbness in her left leg which radiated "down the dorsal
aspect of the thigh and calf into the lateral aspect of the foot . . .
" (Cooney Dep. Ex. 1.) During cross-examination at his deposition, Dr.
Cooney conceded that the claimant's lower extremity symptoms in 1993,
which consisted of leg numbness and pain radiating from her groin, were
"very different" from the symptoms she reported in January 1992. (Id.
at 28.)

58. Claimant had previously
experienced leg pain in 1979 and 1980 in conjunction with sciatica. (Id.
at 14.) However, Dr. Cooney testified that her symptoms at that time were
different than her symptoms following her 1992 accident and that her sciatic
symptoms had resolved prior to the accident. (Id.) The insurer
presented no affirmative evidence to contradict his testimony in this
regard.

59. On April 29, 1996, Dr.
Dale M. Peterson, a neurologist with the Billings Clinic, performed an
independent medical evaluation of the claimant at the request of the insurer.
(Ex. 3 at 2.) He took a medical history, reviewed claimant's medical records,
and performed a neurological examination. (Peterson Dep. at 7-11; Ex.
3 at 2-7.)

60. At the time of the examination
claimant reported that during the day she occasionally had pain in the
bottoms of her feet and that at night she had pain in both her feet and
her legs. (Peterson Dep. at 10.)

61. The results of Dr. Peterson's
neurological examination of claimant were normal. (Id. at 14.)
Based on the location of claimant's leg symptoms and the "absence of findings
referable to the symptoms," Dr. Peterson was unable to diagnose claimant's
leg condition. (Id. at 23.) He opined that her leg symptoms were
not related to her 1992 accident. (Id. at 18.)

62. There is no substantial
evidence indicating that claimant's leg pain is in itself disabling or
that any specific treatment is required.

63. The best that can be said
concerning the claimant's leg pain and numbness is (1) no doctor has a
clue as to what is medically causing it and (2) the type of pain and numbness
which claimant experiences began approximately six months after her industrial
accident. Even though Dr. Cooney is claimant's treating physician, I am
not persuaded by his opinion that her symptoms are the result of her accident.
He conceded that his opinion has no medical basis and is based entirely
on the temporal relationship between the symptoms and the condition, i.e.,
the fact that the symptoms began shortly after the accident. In that regard,
he is in no better position to judge cause and effect than the Court.
Moreover, his inference that claimant's condition was caused by the accident
is undermined by the fact that the symptoms at issue did not emerge until
six months after the accident. He conceded that the pain and numbness
in claimant's legs, which began in July 1992 and continue to present,
were "very different" from the pain claimant had in her ankles and knees
immediately following the accident. He did not provide any explanation
as to why the symptoms would take six months to arise. Dr. Peterson's
opinion that the condition is not related to the accident is more plausible.

Insurer's Conduct

64. The insurer's denial of
payment for an evaluation of claimant at the Mayo Clinic and it's denial
of liability for claimant's leg symptoms were reasonable. In both instances
the insurer obtained medical opinions supporting its position. Moreover,
as presented to the insurer, the recommendations that claimant be seen
at the Mayo Clinic were in large part in response to claimant's urging
that she be sent there. Dr. Cooney's recommendation was also based in
large part on his opinion that patients with chronic medical problems
will never be satisfied until they are evaluated at a major medical center.
Both issues were reasonably debatable.

2. Pursuant to section 39-71-704(1)(a),
MCA (1991), the insurer is required to "furnish, without limitation as
to length of time or dollar amount, reasonable services by a physician
or surgeon, reasonable hospital services and medicines when needed, and
such other treatment as may be approved by the department for the injuries
sustained, subject to the requirements of 39-71-727." The first issue
presented in this case is whether the proposed examination of claimant
by physicians at the Mayo Clinic is reasonable under the circumstances.
Since I have found as fact that such examination is reasonable, the insurer
is liable for and shall pay for such examination.

3. The second issue is whether
claimant's leg pain and numbness is related to her industrial accident.
Claimant must prove by a preponderance of the evidence that a causal connection
exists between the 1992 industrial accident and her leg condition. Brown
v. Ament, 231 Mont. 158, 752 P.2d 171 (1988). She has failed to do
so. While the Court must give some deference to the treating physician's
opinion, the treating physician's opinions are not conclusive. Kloepfer
v. Lumbermens Mut. Cas. Co., 276 Mont. 495, 498, 916 P.2d 1310, 1312
(1996). In this case, the treating physician's opinion was contradicted
by an IME physician. Moreover, the sole basis for the treating physician's
opinion was the fact that claimant's condition began after the accident
and he failed to explain the six-month delay between the accident and
the onset of symptoms.

4. Since claimant has prevailed
she is entitled to her costs. § 39-71-611, MCA.

5. Claimant is not entitled
to attorney fees or a penalty. A finding of unreasonable conduct on the
part of the insurer is required to award either. §§ 39-71-611 and -2907,
MCA. The insurer's denial of claimant's request to attend the Mayo Clinic
was not unreasonable. Its denial of liability for claimant's leg problems
was not unreasonable.

JUDGMENT

1. Claimant is entitled to
an evaluation at the Mayo Clinic and National Union shall pay for such
evaluation.

2. Claimant's leg pain and
numbness is not related to her industrial accident and she is not entitled
to medical benefits for evaluation or treatment of those symptoms.

3. Claimant is entitled to
costs in an amount to be determined by this Court. Claimant shall submit
her memorandum of costs within 10 days of this decision. National Union
shall then have 10 days in which to file its objections, if any. The Court
will then assess costs.

4. Claimant is not entitled
to attorney fees or a penalty

5. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusion of Law and Judgment.

6. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.